I have practiced in Virginia's appellate courts for over 40 years, and practiced family law almost exclusively since 1983. Since 1991 I have analyzed every significant Virginia family law appeal case for the Virginia State Bar's "Family Law News" quarterly. This blog contains both past and current case notes. I try to comment on the ongoing development of the law, and help other lawyers, journalists and the public understand individual cases. Individual case notes aimed to be accurate when written but are not updated as the law evolves. - Richard Crouch

February 13, 2012

PARENTS’ RIGHTS – RIGHTS OF FATHER WHEN IN VITRO FERTILIZATION OCCURS DURING AN UNMARRIED COHABITATION RELATIONSHIP – RIGHT TO KNOW PARENTAGE – SPERM-DONOR STATUTE. An inexcusable attempt to apply the commercial sperm-donor statute to a very, very different sort of illegitimate-birth case was the subject of Breit v. Mason & L.F., 59 Va. App. 322, 718 S.E.2d 482 (12/28/11). Long story short the trial court went along with it, relying on unambiguous wording of an inapplicable statute, but the Court of Appeals did not.

It all began like a typical idyllic story of 21st Century lovebirds wanting a baby but not a marriage, but soured not long after the mother got the baby, and the natural father had been put on the birth certificate, the baby put on his health insurance, and a relationship established between father and daughter, plus the grandparents and friends. The pre-litigation history that the Court of Appeals recited in its opinion was typical, but in the context of this litigation, quite extraordinary. Listen to all this: First, because this came up as a dismissal upon a plea in bar, the facts in the plaintiff’s petition are accepted, as true, but if the parties then present evidence ore tenus, the Court’s fact findings are accorded the weight of a jury finding, so here the Court of Appeals had the following undisputed facts. Mr. Breit and Miss Mason were cohabiting in a “long-term romantic relationship.” She wanted to have a child, and they tried to conceive one the natural way, but unsuccessfully. They sought help from an obstetrician-gynaecologist who started helping them try in vitro fertilization. The second attempt was successful, pregnancy ensued and Mr. Breit “was present for both rounds of egg retrieval, fertilization and transfer of the embryos” to where they needed to go. Cohabitation lasted throughout the pregnancy, including June when they both entered a written “Custody and Visitation Agreement,” prepared by the mother’s attorney, giving the father “reasonable visitation.”

On July 13th little L.F. was born, and they both signed the acknowledgment of paternity, giving L.F. a hyphenated surname and naming them both as her parents on the birth certificate. They mailed birth announcements to friends and family naming themselves as L.F.’s parents, and continued to cohabit for months afterward. It was only in August of the next year when the little girl was just over a year old that the mother unilaterally ended all contact between father and daughter. When the father filed in JDR court a custody petition under two sperm-donor statutes §20-158(A)(3) and 32.-§257(D), notwithstanding all the above, mother argued that §20-158(A)(3) says that a donor is not a parent unless he is the husband of the mother and under §32.1-257(D) “donors of sperm or ova shall not have any parental rights....” The JDR Court dismissed “without prejudice,” and father appealed it to circuit court and filed a “Petition to Determine Parentage and Establish Custody and Visitation.” He argued that the paternity acknowledgment document executed the day after the child was born created a final and binding parent-child relationship with him. The circuit court consolidated the appeal and the petition, appointed the mother’s attorney as the guardian ad litem, and dismissed it all on a plea in bar. The judge admitted that there is “a strong argument” for construing the statutes the way the father wanted, but he felt it would make both statutes meaningless. He also denied the father’s motion for genetic testing, dismissing without prejudice the father’s Petition to Determine Parentage and to award him custody and visitation as a person with a legitimate interest.

To the Court of Appeals, using the sperm donor statute against a natural father who the mother had acknowledged as such under oath was absurd. Because this presented a question of law involving the trial court’s interpretation and application of the statutes, the Court of Appeals was able to review its judgment de novo. It began by pointing out that §20-49.1 says that upon a sworn petition a child, a person claiming parentage, or even a person standing in loco parentis or a person having legal custody, can sue to determine parentage, and that when he or she does that determination will be governed by §§20-49.1 through .10. Section 20-49.1(B)(2) provides that a parent-child relationship between a child and a man can be established by a voluntary written statement by the father and mother made under oath acknowledging his paternity, and it can’t be rescinded after 60 days and shall have the same legal effect as a judgment unless fraud, duress or material mistake of fact are later found. The “Children of Assisted Conception” statute, §20-156 through -165, does provide that in determining the parentage of a child conceived through assisted conception the donor is not the parent unless married to the mother (§20-158(A)(3)), which mother argued was conclusive here. She said that made the statutorily executed Acknowledgment of Paternity void ab initio as violating the General Assembly’s express intent to divest sperm donors of parental rights. Father argued that all the statutes must be construed together to effectuate the real legislative intent, which is to assist infertile couples to use surrogate donors and keep anonymous sperm donors anonymous, and that the Legislature had no intention to divest fathers like him of parental rights, relationships or the right to establish parentage. The Legislature never intended to nullify parentage by a father like himself. The Court of Appeals is not supposed to presume that the General Assembly intended to enact a “manifest absurdity,” and it should interpret statutes to avoid inconsistent results. Section 20-158(A)(3) must be read in conjunction with §20-49.1(B)(2). Both the statutes, the Court of Appeals says, had as their primary purpose insuring legal parentage of a child by a known mother and known father, and neither statute intended to permanently bar a parentage action by a donor such as Mr. Breit. That, it said, would be a manifest absurdity. The intent of the Legislature to ensure that all children born in Virginia have a known legal mother and legal father was obvious to the Court of Appeals. These statutes were primarily also concerned with ensuring that infertile marital couples would not be threatened with parentage claims from anonymous sperm and egg donors, and it intended that a chosen, unmarried donor, known by the unmarried natural mother, and intended to be the father of the resulting child, should never be placed in a position of being permanently barred from assuming parental rights and responsibilities simply because of his unmarried state at the time of conception.

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PARENTS’ RIGHTS – RIGHTS OF FATHER WHEN IN VITRO FERTILIZATION OCCURS DURING AN UNMARRIED COHABITATION RELATIONSHIP – RIGHT TO KNOW PARENTAGE – SPERM-DONOR STATUTE. An inexcusable attempt to apply the commercial sperm-donor statute to a very, very different sort of illegitimate-birth case was the subject of Breit v. Mason & L.F., 59 Va. App. 322, 718 S.E.2d 482 (12/28/11). Long story short the trial court went along with it, relying on unambiguous wording of an inapplicable statute, but the Court of Appeals did not.

It all began like a typical idyllic story of 21st Century lovebirds wanting a baby but not a marriage, but soured not long after the mother got the baby, and the natural father had been put on the birth certificate, the baby put on his health insurance, and a relationship established between father and daughter, plus the grandparents and friends. The pre-litigation history that the Court of Appeals recited in its opinion was typical, but in the context of this litigation, quite extraordinary. Listen to all this: First, because this came up as a dismissal upon a plea in bar, the facts in the plaintiff’s petition are accepted, as true, but if the parties then present evidence ore tenus, the Court’s fact findings are accorded the weight of a jury finding, so here the Court of Appeals had the following undisputed facts. Mr. Breit and Miss Mason were cohabiting in a “long-term romantic relationship.” She wanted to have a child, and they tried to conceive one the natural way, but unsuccessfully. They sought help from an obstetrician-gynaecologist who started helping them try in vitro fertilization. The second attempt was successful, pregnancy ensued and Mr. Breit “was present for both rounds of egg retrieval, fertilization and transfer of the embryos” to where they needed to go. Cohabitation lasted throughout the pregnancy, including June when they both entered a written “Custody and Visitation Agreement,” prepared by the mother’s attorney, giving the father “reasonable visitation.”

On July 13th little L.F. was born, and they both signed the acknowledgment of paternity, giving L.F. a hyphenated surname and naming them both as her parents on the birth certificate. They mailed birth announcements to friends and family naming themselves as L.F.’s parents, and continued to cohabit for months afterward. It was only in August of the next year when the little girl was just over a year old that the mother unilaterally ended all contact between father and daughter. When the father filed in JDR court a custody petition under two sperm-donor statutes §20-158(A)(3) and 32.-§257(D), notwithstanding all the above, mother argued that §20-158(A)(3) says that a donor is not a parent unless he is the husband of the mother and under §32.1-257(D) “donors of sperm or ova shall not have any parental rights....” The JDR Court dismissed “without prejudice,” and father appealed it to circuit court and filed a “Petition to Determine Parentage and Establish Custody and Visitation.” He argued that the paternity acknowledgment document executed the day after the child was born created a final and binding parent-child relationship with him. The circuit court consolidated the appeal and the petition, appointed the mother’s attorney as the guardian ad litem, and dismissed it all on a plea in bar. The judge admitted that there is “a strong argument” for construing the statutes the way the father wanted, but he felt it would make both statutes meaningless. He also denied the father’s motion for genetic testing, dismissing without prejudice the father’s Petition to Determine Parentage and to award him custody and visitation as a person with a legitimate interest.

To the Court of Appeals, using the sperm donor statute against a natural father who the mother had acknowledged as such under oath was absurd. Because this presented a question of law involving the trial court’s interpretation and application of the statutes, the Court of Appeals was able to review its judgment de novo. It began by pointing out that §20-49.1 says that upon a sworn petition a child, a person claiming parentage, or even a person standing in loco parentis or a person having legal custody, can sue to determine parentage, and that when he or she does that determination will be governed by §§20-49.1 through .10. Section 20-49.1(B)(2) provides that a parent-child relationship between a child and a man can be established by a voluntary written statement by the father and mother made under oath acknowledging his paternity, and it can’t be rescinded after 60 days and shall have the same legal effect as a judgment unless fraud, duress or material mistake of fact are later found. The “Children of Assisted Conception” statute, §20-156 through -165, does provide that in determining the parentage of a child conceived through assisted conception the donor is not the parent unless married to the mother (§20-158(A)(3)), which mother argued was conclusive here. She said that made the statutorily executed Acknowledgment of Paternity void ab initio as violating the General Assembly’s express intent to divest sperm donors of parental rights. Father argued that all the statutes must be construed together to effectuate the real legislative intent, which is to assist infertile couples to use surrogate donors and keep anonymous sperm donors anonymous, and that the Legislature had no intention to divest fathers like him of parental rights, relationships or the right to establish parentage. The Legislature never intended to nullify parentage by a father like himself. The Court of Appeals is not supposed to presume that the General Assembly intended to enact a “manifest absurdity,” and it should interpret statutes to avoid inconsistent results. Section 20-158(A)(3) must be read in conjunction with §20-49.1(B)(2). Both the statutes, the Court of Appeals says, had as their primary purpose insuring legal parentage of a child by a known mother and known father, and neither statute intended to permanently bar a parentage action by a donor such as Mr. Breit. That, it said, would be a manifest absurdity. The intent of the Legislature to ensure that all children born in Virginia have a known legal mother and legal father was obvious to the Court of Appeals. These statutes were primarily also concerned with ensuring that infertile marital couples would not be threatened with parentage claims from anonymous sperm and egg donors, and it intended that a chosen, unmarried donor, known by the unmarried natural mother, and intended to be the father of the resulting child, should never be placed in a position of being permanently barred from assuming parental rights and responsibilities simply because of his unmarried state at the time of conception.